s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time not granted.

• [1] Mr Dighton (Applicant) filed with the Commission an application under s. 394 of the Fair Work Act 2009 (Cth) against his former employer, Integrated Maintenance Services (Respondent), seeking an unfair dismissal remedy. It is not controversial that the application relates to a dismissal that took effect on 28 May 2025.[1]

• [2] The application was filed on 5 September 2025. It was therefore filed 78 days outside of the standard time permitted by s. 394(2). As the Application was filed out of time, an extension of time is required in order for the Application to proceed. This decision deals with the issue of whether such an extension will be provided. Section 394(3) of the Act provides that the Commission may allow a further period for an unfair dismissal Application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(b) whether the person first became aware the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between the person and other persons in a similar position.

• [3] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters)[2] a Full Bench of this Commission considered the similar test for extending time for applications for the Commission to deal with disputes over dismissal involving a contravention of Part 3-1, which appears in s. 366(2) of the Act, and said:

"[14] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension. A decision whether to extend time under s.366(2) involves the exercise of a discretion."

Furthermore, the Full Bench in that case described the task of discerning exceptional circumstances in a manner that was not consistent with a mere "tick a box" approach to the enumerated considerations, but rather involved an evaluation taking into account matters of weight and degree.[3]

• [4] The meaning of 'exceptional circumstances' in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty)[4] as follows:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

• [5] The matter before me proceeded by way of hearing on 24 November 2025, wherein neither party was represented. The only witness in the proceeding was the Applicant. He was briefly cross examined. In addition to his witness statement,[5] the Applicant relied on some discharge documents provided to him following an admission to hospital on 26-28 June 2025,[6] some correspondence concerning specialist appointments[7] and medical tests[8] and an e-mail from his former employer dated 28 May 2025.[9] The Respondent did not mount an evidentiary case. I have had regard to written material provided and the oral evidence and submissions given at the hearing.

• [6] The Applicant presented as a credible and genuine witness who had experienced hardship following his dismissal. He had been working for the Respondent, a labour hire company, on assignment to a Bega cheese factory. This was the first and only assignment the Applicant received, having registered in July of 2024 and not securing the Bega work until October of 2024. The dismissal immediately followed the Applicant leaving work before the end of his overnight shift on 28 May (a shift that had started on 27 May), due to him experiencing chest pain. The Applicant said in his application form that he looked for a supervisor to report his illness to and could not find one. He received an e-mail later that day from Greg Laidlaw of his employer advising him that his "assignment at Bega is finished effective immediately".[10]

• [7] Where paragraph (a) of subsection 394(2) requires the reason for "the delay" to be taken into account, the relevant delay is to be taken to be the period between the expiry of the time limit (in this case 18 June 2025) and the filing of the application (in this case 5 September 2025), and does not include the period from the date the dismissal took effect to the end of the 21 day period. Nonetheless, events and circumstances preceding "the delay" may be considered for the purposes of determining the reason for "the delay" and ultimately whether that reason supports a finding that there are exceptional circumstances.[11] An acceptable explanation of the entirety of the delay is not required to make a finding of exceptional circumstances, however it is relevant to have regard to whether the applicant has provided an explanation for the entirety or any part of the delay.[12]

• [8] The Applicant's explanation for his delay is that he has been seriously unwell. The dismissal immediately followed the Applicant leaving work before the end of a shift due to him experiencing chest pain. The Applicant believes that the symptoms that he experienced at that time and that continued thereafter (including shortness of breath and fatigue[13]) were related to a developing medical condition that was diagnosed following his collapse at home and emergency admission to hospital via ambulance on 26 June 2025. That medical condition was described as a "Saddle pulmonary embolism" and "Saddle embolus, with large burden of clot bilaterally, nearly occlusive within the distal pulmonary arteries, extending into segmental and subsegmental branches in the upper and lower lobes bilaterally, right heart strain".[14]

• [9] The Applicant's hospital admission post-dated the expiry of the time limit for lodging an unfair dismissal claim. Whilst his evidence is that he experienced symptoms throughout, there is no medical evidence as to the impact of his diagnosed condition on his functioning prior to his hospital admission. During cross examination, the Applicant gave evidence that if he had a job to go back to prior to lodging his unfair dismissal claim, he would have done so notwithstanding his shortness of breath.[15]

• [10] The Applicant adds that he contacted the Respondent the day following his dismissal, to see if Bega could reconsider their decision. He says that it took about two weeks to receive a response, which occurred on a Friday. If that estimate is correct, the response was received on 13 June 2025. The response was to the effect that there would be no reconsideration. The Applicant says that he "always intended to lodge an unfair dismissal claim form when I was 100% right and I'd heard back from Greg to see whether I still had my job or not".[16] The Applicant says that in the June-July period his recovery was slow, he was "physically weak and mentally exhausted" and:

"During this time my primary focus was survival and rehabilitation, not administrative or legal matters. I was also under strong medication which affected my concentration and cognitive capacity"[17]

In respect of the period following the hospital admission, the Applicant said that he didn't lodge his application until his mind was 100% stable and he wasn't worried about his health, and that he launched his application when he felt "right to do so".[18] It is not in dispute that the Applicant continued to be under the supervision of a specialist. The Applicant says he did speak to his union before making the claim, who were of the view that "the time factor is big thing".[19]

• [11] In cases where some level of incapacity is asserted as a reason for delay, it is ordinarily necessary for some quite specific evidence to be given as to the nature and duration of that capacity in order put the Commission in a position to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit,[20] or the duration of any incapacity. The evidence in this matter falls short of that standard. The most that can be said is that the Applicant has a credible reason for some part of the delay that occurred in this case, being the period coextensive with and likely extending for some period before and after his hospital admission. However, as noted above, the total delay was 78 days and this is a significant period of time.

• [12] It is not in dispute that the Applicant was informed of the dismissal on the day it took effect.

Action taken by the Applicant to dispute his dismissal

• [13] As noted above, the Applicant made inquiries with his employer with a view to having the decision to conclude his assignment reconsidered, before the lodging his unfair dismissal claim.

• [14] The Respondent did not submit that it would be prejudiced by an extension being granted. The absence of prejudice is a neutral factor.

• [15] In determining this extension of time application, the parties have not been required to provide detailed evidence on the merits of the substantive matter. This would not have been an appropriate course. Rather, the instant task insofar as it concerns the merit of the matter is to determine whether the Applicant can establish the matter is not without merit.[21]

• [16] The Respondent did not make submissions on the merits of the claim. The Applicant's view is that he considers that there was no procedural fairness associated with his dismissal and that his reason for absenting himself from the workplace - which he considers were symptoms associated with the onset of a serious medical condition - were genuine and reasonable. It may well be that the Applicant is conflating some of the conduct of Bega (the host employer) with conduct of the Respondent. Nonetheless, it is by no means a certainty that a labour hire employer will be found blameless in circumstances where it ends an assignment on instruction from the host.[22] In all the circumstances I treat the merits as a neutral factor.

Fairness between the person and other persons in a similar position

• [17] Neither party was able to make any specific comparisons in relation to this issue. I am not satisfied that this issue is a relevant consideration in the present matter.

• [18] Having taken each of the factors referred to in subsection 394(3), I am not persuaded, on balance, to grant the extension of time sought by the Applicant.

• [19] The Respondent was on notice that the Applicant disputed his dismissal and sought for it to be reconsidered. The Applicant has undoubtedly suffered a very serious medical emergency and the physical and mental impacts of that have had some impact on his capacity to commence his claim earlier than he did, but the extent of this is indeterminate on the status of the evidence before me. Moreover, the Applicant's evidence of his intention to continue working (had he been permitted to) sits uncomfortably with his submissions as to capacity even in the period prior to the time limit expiring. The remaining factors are neutral. This turn of events does not rise to the level of exceptional circumstances either individually or collectively so as to enliven the discretion to extend time.

• [20] An Order reflecting this decision will be issued in due course.[23]

[2] [2018] FWCFB 901

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) [2018] FWCFB 901 at [38]- [39].

[4] [2011] FWAFB 975.

[11] Kurtev v. KCB Australia & Anor [2025] FWCFB 13 at [24], Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [17].

[12] Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [18].

[20] Mamo v. ICLED Australia Pty Ltd [2021] FWC 3903 at [24]

[21] Withers v. Contare [2022] FWC 967 at [33]- [37].

[22] See Nag v. Proquest Recruitment Pty Ltd [2025] FWC 78.

[23] PR794551.

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